Free Speech Matters, Even When it’s Not Protected by the First Amendment

Follow any debate over censorship these days, and one is likely to hear this misguided view stated repeatedly. It means, in effect, that free speech is a legal right against the government, but not a spirit or value that the broader society should honor. In an interview with Above the Law, First Amendment lawyer Ken White (of “Popehat” fame) colorfully articulates this perspective:

Recently you see, from the Right, (and from some Libertarians), a tremendous amount of bullshit about “the spirit of free speech.”

“The spirit of free speech” can be summarized as saying that not only is racist speech protected from prosecution and civil suits, it ought also be protected from other people’s response speech…. [N]ot only should they not be prosecuted (right) or sued (right), but it would be wrong to boycott them, shun them, encourage public condemnation of them that might cost them their job, and so forth, because that “chills speech.”

Basically, the “spirit of free speech” people want a world where people can be consequence-free assholes: where there’s a set of rules of civility and high-minded discourse that apply only to the responses…

White’s position is a confused one, but it reflects a worrisome movement toward devaluing free and open discussion, so it needs to be addressed. Let’s start with the confusion. For advocates of free speech as a “spirit” or cultural value, an important distinction exists between disagreement and retaliation. Obviously everyone should feel free to criticize anyone else, even in harsh terms, because that’s necessary for robust debate. If the “spirit of free speech” were supposed to render every speaker immune from criticism, then the concept would clearly be self-defeating.

The real threat to free speech comes not from harsh words, but from social and economic punishments that go far beyond the initial disagreement. A culture of free speech says that Ken White and I can have a vigorous debate over some issue of the day, but when it’s over we can both go back to our private lives without fearing retribution. I should not have to worry that White will lobby my employer to fire me, or encourage a mob to protest outside my house, or threaten my friends and colleagues with similar treatment unless they disconnect.

Those who instead believe that free speech means only that Ken White cannot have me arrested should consider why First Amendment protections exist at all. Presumably, the founders believed open debate is essential to a free society, and the threat of government persecution would discourage that debate. Of course, the First Amendment restrains only the government, but if we take the wisdom of it seriously we should value its principles more broadly. After all, if open debate is truly desirable, we should be concerned not just about government suppression of unpopular views, but about non-governmental suppression. As chilling effects go, “I would speak out, but I don’t want to risk going to jail” is not all that different from “I would speak out, but I don’t want to risk losing my friends and my livelihood.” The end result is the same—less speech, less debate, less openness.

Some people assume non-governmental censorship limits only a vitriolic fringe. I see no evidence of this. James Damore hardly expressed a fringe or hateful perspective when he internally criticized Google’s diversity ethos, but the company fired him anyway. Mozilla CEO Brendan Eich donated to a ballot initiative against same-sex marriage that won, but he lost his job anyway. The message from both companies was that people with contrary views—even widely-held contrary views—should get with the ideological program or lose their jobs.

Another misleading assumption is that private-sector censorship is only about defending the powerless from harassment. Actually, it’s often about defending the powerful from criticism. CNN once threatened to dox a blogger who had created a pro-Trump meme mocking the network. It backed down only on the condition that the blogger apologize and promise never to do it again. Who exactly was the powerless one in that situation? Dr. Noah Carl was fired by St. Edmund’s College because his research on group differences was “problematic,” but the administration cited no actual errors in his work. Was the university speaking truth to power, as the saying goes—or speaking power to truth?

Technology companies, media organisations, and universities exert tremendous influence over society, and we should not want them to punish people for what they believe, what they say, or what they research any more than we should want the government to do so.

In fact, non-governmental persecution is in some ways worse. At least someone whom the government charges with a crime is entitled to a trial in which the facts are aired. In the midst of social shaming, facts become secondary to outrage, and lives can be irreparably harmed before cooler heads prevail. Furthermore, the government must establish clear rules, with decisions subject to appeal, but non-governmental organizations can act on a whim. Exactly what kinds of speech will ignite an outrage mob or get a person banned from using PayPal? Nobody knows. The feeling that it is impossible to speak freely on controversial matters without being misunderstood or caricatured, combined with the sheer unpredictability of what will trigger an outrage mob, frightens people into keeping quiet. Is all of this okay just because it’s not spearheaded by the government?

The model that says “government censorship = bad; non-governmental censorship = good” is not sustainable. I believe that free speech should be a cultural value for the same reason it is a legal right—namely, that an open discussion is valuable. But censors will eventually turn this logic around. They will argue that if it’s right and good for private actors to persecute people for their “wrong” views, then surely it is also right and good for the government to do it. In fact, this is the position taken by White’s interviewer at Above the Law, Elie Mystal, who supports an anti-“hate speech” amendment to the Constitution. Sadly, an amendment probably won’t be necessary to achieve his censorship goals. A recent poll found that 35 percent of college students already believe that the First Amendment contains a “hate-speech” exception. How much longer until the courts decide it’s in there for real?

In the long run, the rights of a free people are sustained not by laws, but by a cultural consensus that places real value on freedom. That’s why the “spirit of free speech” is so important to revive. Debate people vigorously, but don’t try to silence them. Don’t try to prevent others from hearing what they have to say. Don’t try to get people fired from their jobs or shunned by their friends and colleagues.

Respecting free speech does not mean, of course, that every aspect of society must be viewpoint-neutral. A pro-choice advocacy group obviously need not hire pro-life employees, nor should we feel compelled to associate with unsavory characters in our private lives. When responding to speech we don’t like, a useful guideline is to ask ourselves, “Am I disagreeing, or am I retaliating? Am I trying to persuade, or am I trying to silence?” If retaliation or silencing is the goal, remember that such techniques will ultimately be used not just on “bad” speech, but on “good” speech, as well. And when people refrain from speaking because they fear personal retribution from corporations, the media, academia, or an unruly Twitter mob, the value of their speech is lost—lost in the same way it would be if the government threatened them with punishment. Someday in the not-too-distant future, speakers may have to fear that, too.

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In my opinion one of the main issues with the current social censorship and cancel culture problems is a dishonest interpretation and assumption of ill intent.

If I encounter someone with legitimately racist beliefs or actions I will either a) disengage from this person or b) confront them on the inappropriateness of such beliefs. (This is the more rare reaction. Who wants a confrontation and since when did I sign up to educate the world on reasonable race relations)

I also won’t conduct business with these people or vouch for them to others, but I won’t go out of my way to shit on their reputation either.

I feel all these responses are reasonable.

But who is to say that my interpretation of what is racist is fair? What if it isn’t?

I think that a lot of people, myself and Dr King included, would feel the goalposts have shifted on this subject in particular. It is merit and character that define your worth, not skin color. I won’t even attempt to describe the new definition of racism, it’s pretty apparent to anyone who pays attention to identity politics. So in short, there’s new regulations to a legitimate game. These are more what I disagree with than the tactics…which I am guilty of employing myself.

FYI I am a general contractor and do run into people with these beliefs occasionally.

Good article, but what it leaves out is how the modern left excuses itself. It says hate speech should not be allowed, but it’s own speech is virulently hateful. Males are toxic, Trump voters are deplorable Nazis etc. Not only that, but it allows itself hate action, which is not something a constitution or a society should allow. It’s not just that people are harassed or lose their jobs for some tweet or off hand remark, it’s Antifa beating up people or some idiot pepper spraying a woman just for wearing a MAGA hat. SJWs want safe spaces for themselves, but they want everywhere to be a very unsafe space for people who disagree with them.

Companies are entitled to reasonably expect that employees who seriously disagree with their policies will seek alternative employment elsewhere, and if they fail to do so

Sometimes. But when the shoe is on the other foot the Warriors take an entirely different view. If, say, some worker at a Catholic school came out as a Satan worshiper and advertised the fact that she’s a promiscuous lesbian, and were she asked to seek alternative employment elsewhere, it would be seen as a Human Rights holocaust, wouldn’t it?

“Mozilla CEO Brendan Eich donated to a ballot initiative against same-sex marriage that won, but he lost his job anyway.”

But, 20 years ago if a CEO was found to be gay and were fired for it, the fact that he might have been a clear liability to a company seeking to strengthen its position in conservative-minded
markets would not have saved that company from being sued, yes?

“For example, if an office worker insists on repeatedly telling gay co-workers that they are sinners destined for hellfire, such a person may well be fired for conducting a campaign of offensive personal abuse.”

Indeed, but supposing it was simply discovered that she was a fundamentalist Christian and she was fired in spite of having kept her beliefs entirely to herself? Was Brendan Eich actively making trouble for homosexuals at Mozilla or was he simply found out to be, personally and privately, opposed to gay marriage? The ethic used to be that your personal beliefs were no one’s business but your own so long as they did not interfere with your performance at work. So now we countenance witch hunts? Only the woke can keep their jobs? Let’s have loyalty oaths administered by voodoo priestesses or militant trannies.

This is an old, tiresome argument. Tell me, do you believe a Christian baker has the right to turn away customers who want a gay wedding cake? If not, why not. It’s his business. But, I’m suspect, the rules wouldn’t suddenly change for you there.
Employees have all kinds of beliefs. Do you think it’s okay to fire someone for their religion, their votes, their taste? Or should job performance be the only real decider? Let’s say I’m your employer, and I upon reading your posts, go “you’re fired”, are you good with that? Do you think only people who follow a certain ideology deserve jobs? The example you give of an employee harassing gay colleagues is dishonest. That isn’t what Damore or Eich did. To fire someone for holding an opinion is bullying, and it is harassment.

The interesting thing is that Google lost heavily in the culture wars when if fire James Damore. It was a PR disaster. Talk about using a sledgehammer to crack a nut. All they had to do was to argue why their policy of affirmative action was correct and although it wouldn’t have convinced anyone, they would have not had the massive negative publicity they had when they fired someone for having the mainstream opinion.

James Damore hardly expressed a fringe or hateful perspective when he internally criticized Google’s diversity ethos, but the company fired him anyway.

Companies are entitled to reasonably expect that employees who seriously disagree with their policies will seek alternative employment elsewhere, and if they fail to do so, it’s hardly surprising that they are sometimes dismissed.

Google solicited feedback on these policies, which is an invitation of criticism. Damore, who was good at his job, was fired for unacceptable political and philosophical beliefs, not disagreement with Google’s policies. He ran into a buzz saw of the identity politics outrage culture, whereby twisted spoiled babies who believe themselves victims lash out at anyone who challenges their world view. They accept only one world view, and define everything else as morally bad, and they pull the strings at powerful institutions and corporations like Google. Their power is built on moral superiority, which is an illusion. Google was morally wrong to fire Damore. And I don’t believe they were entitled to do so.

The ethic used to be that your personal beliefs were no one’s business but your own so long as they did not interfere with your performance at work. So now we countenance witch hunts? Only the woke can keep their jobs? Let’s have loyalty oaths administered by voodoo priestesses or militant trannies.

Anybody who disagrees with social justice theory in any way must be rooted out, because those hidden folks are responsible for “institutional racism, sexism, and bigotry.” One thought to rule them all, one thought to find them, one thought to bring them all and in the darkness bind them.

Trouble is, to accommodate that view and be fair to all, we’d have to accommodate every kind of petty prejudice.

Right. So you do see what you’re doing here: Views which you consider to be petty prejudice or ancient superstition or Hate or … may be persecuted but views which you consider to be modern and progressive are protected, yes? A CEO may be fired for privately not supporting gay marriage but we can’t have Muslims refusing to serve Jews. I trust we can’t let a Muslim owner of a grocery store fire an employee after discovering that he’s a Jew? What if he says it’s not because he’s a Jew, but because he’s suspected of being a Zionist?

Trouble is, to accommodate that view and be fair to all, we’d have to accommodate every kind of petty prejudice.

What if someone, likely on the left, asked a Jewish printer to print a banner with “Boycott Israel. Support BDS” and the printer refused? Something rather like this happed in the Asher Bakery case in Northern Ireland. There, on Christian grounds, the bakery refused to bake a cake decorated with a picture of Bert and Ernie and the slogan “Support Gay Marriage”. The bakery lost its first two court battles, which were then overturned by the Supreme Court. The case is now going to the European Court of Human Rights.

Even trickier–because violence might ensue if the experience of cartoonists is anything to go by–suppose someone asked a Muslim business to make something (a cake or a banner, eg) with an image of Mohammed on it?

Tell me, do you believe a Christian baker has the right to turn away customers who want a gay wedding cake? If not, why not. It’s his business. But, I’m suspect, the rules wouldn’t suddenly change for you there.

I would just like to clarify a little something here, since misinterpretations seem to have propagated downthread.

In the issue of Masterpiece Cakeshop, the owner Jack Phillips did not refuse to serve a gay couple, he refused to create a wedding cake for them. They were free to buy anything they wanted in the store.

Phillips regards the creation of a wedding cake as a form of artistic expression, and hence should be regarded as a form of speech. So forcing him to create the cake becomes a means of compelling speech.

I would probably disagree with Phillips on most things - especially on gay marriage - but on this I certainly support him. Compelled speech is anathema to any notion of a free society.

“I’m happy for the Catholic Church to follow their own employment practices, as long as they pay for it all themselves.”

So you would oppose any SJW who made an issue of a lesbian being fired by the Catholic Church in any context that did not involve public money? In charity I should take you at face value but I have my doubts. Anyway yes it is a strained matter when a church receives public funds, I’ll grant you that. It can be argued both ways, but as an opening salvo I’d ask what’s the point of having a Catholic school that’s not allowed to be Catholic? In England they have laws that Muslim schools must teach that all religions are equal and that Jews are to be loved and if Allah doesn’t support gay marriage then Allah is wrong. It’s wierd.

“Many conservatives these days don’t support that kind of discrimination against gays”

But you evade my point. If some progressive organization can fire someone for not supporting gay marriage, can some other conservative organization fire someone for supporting it? Is what’s sauce for the goose sauce for the gander? I predict that @neoteny and other fundamentalists will at least be consistent in this. Irrespective of the mores of the month, do people have the rights to their personal beliefs, unmolested in any way, or do they not? If they do, then I say that both of the above are protected. If they are not, then both of the above may be fired.

But I suspect you will try to justify one and forbid the other based on your personal mores. But this puts the law at the mercy of whoever holds the microphone at the moment. At the moment that’s the Woke, but supposing tomorrow it’s fundamentalist Christians? Your side is in control today, but what about tomorrow? If Mr. Eich can be fired for his personal beliefs, then so can you. Your side is winning at the moment so you take a very casual view of the issue – the ignorant, the superstitious, the deplorable … do we really need to grant them the same protections as real people? No, probably not. But understand that the deplorable may take the same view of your rights.

What would you think of the argument in some country that doesn’t yet have gay marriage that" ‘If you want to marry your gay lover, then you can move to some country that does have gay marriage, but we here are not going to allow it.’?

Perhaps this is not a matter for clumsy law but for a cultivated decency. Whereas perhaps we wouldn’t recommend laws against firing someone for not being pro gay marriage, perhaps a civilized person would understand that it would yet be wrong to do so, and would be equally wrong for fire them for being a gay activist. I think back to the gay cake: If I were the judge hearing this, I ask the gay couple if it wouldn’t have simply been more respectful of them to honor the baker’s beliefs and go across the street to another baker? A wee bit of civility would have prevented the court’s time from being wasted. I’d have awarded them 50 cents for hurt feelings and fined them 50 bucks for wasting the courts time when there are serious matters like traffic tickets on my desk.

You say a Christian baker has no rational reason to personally create a wedding cake for a gay couple. Is it rational for a gay couple to demand he does? Hell, the rational thing is ask elsewhere. I don’t ask a Muslim butcher for pork. Tons of people have views that are “stupid” or “offensive” or “irrational” to tons of other people. Who decides who’s right? I get that you probably think you’re smarter and more decent than all the people you’re arguing against, but the key difference is none of us wants you to lose your job for arguing with us.